Torts E&E - Question, re: False Imprisonment, Example #1
Posted: Sun Oct 14, 2012 3:10 pm
The answer to #1 of the false imprisonment chapter of the torts E&E seems to clash with an example given in Restatement § 35 on false imprisonment. Can someone please help clarify?
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1. Lewis, a school bus driver, completes her route, returns the bus to the lot, locks the door, and heads for home. Unbeknownst to him, Gretel, a small first grader, had fallen asleep curled up in a back seat, and wasn't visible from the front of the bus. Lewis had looked to the back before getting off the bus, but did not see her. Gretel awoke and was terrified. She was not discovered until the following morning. Her parents bring suit on her behalf for false imprisonment. What result?
Answer:
Gretel will lose this case, since Lewis did not act with tortious intent. He did act "intentionally," in the sense that he deliberately locked the bus before leaving. But he did not act with a purpose to confine Gretel, or with substantial certainty that she would. Lewis may have been negligent, for failure to walk to the back of the bus and check for sleeping kids; this doesn't seem like a totally unlikely scenario. If so, Gretel may have a claim for negligence against him. But false imprisonment is an intentional tort, which means that Gretel can only recover for it if she proves that Lewis acted with intent to confine or with knowledge to a substantial certainty tha this act would confine her. That isn't true here.
However, Restatement Second § 35(2) reads:
An act which is not done with the intention stated in Subsection (1,a) does not make the actor to the other for a merely transitory or otherwise harmless confinement, although the act involves an unreasonable risk of imposing it and therefore would be negligent or reckless if the risk threatened bodily harm.
Illustration 2 of the Restatement § 35 reads:
Just before closing time, A, a shopkeeper, sends B into a cold storage vault to take inventory of the articles therein. Forgetting that he has done so, he locks the door of the vault on leaving the premises. If in a few moments thereafter, he remembers that B is in the vault and immediately goes back and releases B, he is not liable to B for the momentary confinement to which B has been subjected. On the other hand, if he does not remember that B is in the vault until he reaches home and, therefore, although he acts immediately, he cannot release B until B has been confined in the cold vault for so long a time as to bring on a heavy cold which develops into pneumonia, he is subject to liability to B for the illness so caused.
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My question is why wouldn't Lewis be liable, seeing as how the confinement was not merely momentary or transitory (it lasted the whole night) and Greta was likely harmed by it (emotionally, because she's just a little first grader; and physically, because she was probably starved during her confinement - maybe even cold enough to get sick after, though the facts don't indicate it)?
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1. Lewis, a school bus driver, completes her route, returns the bus to the lot, locks the door, and heads for home. Unbeknownst to him, Gretel, a small first grader, had fallen asleep curled up in a back seat, and wasn't visible from the front of the bus. Lewis had looked to the back before getting off the bus, but did not see her. Gretel awoke and was terrified. She was not discovered until the following morning. Her parents bring suit on her behalf for false imprisonment. What result?
Answer:
Gretel will lose this case, since Lewis did not act with tortious intent. He did act "intentionally," in the sense that he deliberately locked the bus before leaving. But he did not act with a purpose to confine Gretel, or with substantial certainty that she would. Lewis may have been negligent, for failure to walk to the back of the bus and check for sleeping kids; this doesn't seem like a totally unlikely scenario. If so, Gretel may have a claim for negligence against him. But false imprisonment is an intentional tort, which means that Gretel can only recover for it if she proves that Lewis acted with intent to confine or with knowledge to a substantial certainty tha this act would confine her. That isn't true here.
However, Restatement Second § 35(2) reads:
An act which is not done with the intention stated in Subsection (1,a) does not make the actor to the other for a merely transitory or otherwise harmless confinement, although the act involves an unreasonable risk of imposing it and therefore would be negligent or reckless if the risk threatened bodily harm.
Illustration 2 of the Restatement § 35 reads:
Just before closing time, A, a shopkeeper, sends B into a cold storage vault to take inventory of the articles therein. Forgetting that he has done so, he locks the door of the vault on leaving the premises. If in a few moments thereafter, he remembers that B is in the vault and immediately goes back and releases B, he is not liable to B for the momentary confinement to which B has been subjected. On the other hand, if he does not remember that B is in the vault until he reaches home and, therefore, although he acts immediately, he cannot release B until B has been confined in the cold vault for so long a time as to bring on a heavy cold which develops into pneumonia, he is subject to liability to B for the illness so caused.
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My question is why wouldn't Lewis be liable, seeing as how the confinement was not merely momentary or transitory (it lasted the whole night) and Greta was likely harmed by it (emotionally, because she's just a little first grader; and physically, because she was probably starved during her confinement - maybe even cold enough to get sick after, though the facts don't indicate it)?
